EDMONTON — When the Supreme Court of Canada hears an appeal on Thursday in the case of an Ontario trucker acquitted in the death of an Indigenous woman in an Edmonton motel room, its decision could make significant changes to the way the courts treat consent and sexual assault.

The justices will determine whether or not Bradley Barton should be retried in the death of Cindy Gladue and, in doing so, they will consider whether or not a sexual partner could be found guilty of sexual assault if both parties agreed to the activity and figured it was harmless. The top court will also consider if there should be different, stricter standards of consent for sex workers.

The pair met at the Yellowhead Inn in Edmonton in June 2011 and Barton paid Gladue for sex. The next night, they met again. The next morning, her body was found in the bathtub after Barton called 911. Gladue died from an 11-centimetre wound in her vagina. Barton argued it was an accident — he testified that both nights he’d put his hand in her vagina — while a medical examiner argued she’d been cut.

A jury found Barton not guilty of manslaughter and murder in 2015. The Crown appealed following nationwide protests and the Alberta Court of Appeal ordered a new trial. Barton appealed that decision to the Supreme Court.

As it stands now, consent is negated when someone intends to and causes harm. But the Alberta Crown, as well as attorneys general in other provinces, including Ontario, argues that an “objective likelihood of harm” cancels out sexual consent.

“In effect, it would mean that, although both parties apparently consented to the activity, and although both regarded the conduct as harmless, one of them could nonetheless be found guilty of sexual assault,” said University of Saskatchewan law professor Michael Plaxton in an email.

If the top court orders a new trial, it could be held under these updated definitions of consent, said Lisa Silver, a University of Calgary law professor.

Cindy Gladue was a 36-year-old mother of three.File

“If the error and order for new trial is based on the meaning of consent, then yes, the legal principles articulated by the court would be the ‘law’ so to speak,” she said. “However, if the court says, ‘yes, there is a need for a new formulation of consent and we leave that to Parliament,’ then Parliament will need to act quickly and make those changes for them to apply.”

Barton’s lawyer, Dino Bottos, argues that consent versus harm arguments were only raised at the Alberta Court of Appeal, not in the initial trial, and therefore shouldn’t affect his client’s case.

It would be akin to double jeopardy, Bottos said. “We’re just trying to hold the line.”

Redefining consent, Plaxton said, would be a fairly significant departure from current law. The Attorney General of Canada is calling for a narrower change, he said.

In its factum, it argues there should be different standards of consent, based on the sort of relationship in question — specifically, when it comes to selling sex.

“In identifying at what point commercialized sexual activity resulting in bodily harm should be criminalized, the focus is not only on whether the conduct causes harm, but on whether that harm is of a degree that is acceptable to society,” the factum states. “Limiting what types of paid sexual activity can be lawfully consented to is necessary to shield a vulnerable group from sexual exploitation and abuse.”

Valerie Scott, one of the plaintiffs in the Bedford case that took the fight against Canada’s prostitution laws to the Supreme Court, said she “intensely dislikes” the idea that there should be a two-tier system of consent.

“It’s yet another way of infantilizing sex workers. We don’t need these special protections, which will be used against us,” Scott said. “But, no, I don’t think people can consent, or be able to consent, to something that causes serious bodily harm, or death. Whether sex is involved or not. Whether money is involved or not. We don’t need this other tier against sex workers.”

People protest in Edmonton on April 2, 2015 after Brad Barton was found not guilty in Cindy Gladue’s death.Bruce Edwards/Postmedia/File

The Supreme Court could also decide not to weigh in on these arguments, and instead stick with the strict legal questions about errors — or not — in the Alberta Court of Appeals ruling.

“They can certainly stick to the grounds, or they can really open this up to a bigger conversation or they can say ‘we’re only going this far, and the rest of the way is up to Parliament,’” Silver said.

In addition to questions of consent, the Supreme Court may consider how Gladue was described during the original trial. She was referred to, repeatedly, as both “Native” and a sex worker. While Gladue’s employment may have been relevant in this particular case, previous sexual history is generally disallowed in courts on the basis it supports the “twin myths”: that the person was more likely to have consented because of her previous sexual history and that she’s less believable because of that sexual history.

Calling Gladue “Native” only made things worse, says the Assembly of First Nations in its factum.

“The labelling of Cindy Gladue as a ‘Native’ gave the jury implicit permission to determine that she was less worthy of protection under the law… It is a striking acknowledgement of long-held racist and dangerous stereotypes that Indigenous women and girls are sexually ‘available for the taking.’”